Should no mean no?

There appears to be a common characteristic whenever there are articles or ‘advice’ about rape; the onus is usually on the victims’ behaviour. More specifically, the focus is usually on female victim’s behaviour. Women are told not to walk home on their own, to watch how much they drink and to make sure that if they do not want to have sex that they ‘say no to sex they don’t want’

The problem with this kind of focus is that it places the responsibility on the victim to avoid rape, rather than the perpetrator to not rape. But what about a woman who does not follow this ‘guidance’ and does drink or does walk home alone? If something happens to her are we to deem there is some sort of responsibility on her part? Obviously, there is no responsibility on her part. No one should be made responsible for another’s choices, yet you can’t escape the inevitable victim blaming comments in many articles about rape cases.

The flip side of this is that if a woman does follow this ‘guidance’ and does ‘say no to sex she doesn’t want’ yet someone still forces ‘sex’ on that person what happens next? Are we safe to assume a rape conviction is on the cards? After all, the woman stuck to the ‘advice’ and said no.

Not, so according to judge Ralf G. Larsson in Sweden, who has declared ‘no’ can mean ‘yes’. The judge has acquitted a rape suspect, despite a woman’s claims that she “expressed very clearly that I didn't want to, so there was no way he could misunderstand me”. Despite the cries of ‘no’, the suspect’s defence was that he thought she liked rough sex.

The judge wrote: “If the thought had not occurred to him, that she did not want to have sex with him, then he didn't have any intention to do what he did” Yet, he also wrote: “The woman had made very clear to the man at least six times that she did not want to do what he wanted to do”.

So this raises questions about why the judge was so ready find that the suspect had not intended to rape, when clear protestations on the woman’s part had been established and accepted. In fact, the woman claims she screamed so loudly she lost her voice and he covered her mouth and nose. If saying ‘no’ at least six times is not a clear indication of lack of consent, I’m struggling to understand what would be.

The judge also suggests that the fact that he relented on some sex acts (oral and anal sex) means he was not capable of then forcing another act? I can’t say I understand this logic as violence can escalate and frustrations can build in all sorts of situations. She stated that the man became more aggressive as her protests increased, adding that he "seemed to like it".

Disturbingly, with this ruling, the judge has taken away a victim’s avenue to demonstrate consent has not been given. If ‘no’, or even several ‘no’s’ will not always be believed, then where do victims go from here?

If no can mean yes, are we not further putting off people from reporting their rape through fear their ‘no’s’ could be argued in court to mean ‘yes’. All this when more people, not fewer, should be encouraged to come forward.

If verbal direction (that is accepted to have taken place) is not enough, what would be? Courts cannot rely on evidence of fighting back - victims will not always fight back for a variety of reasons: fear of further violence, freezing, they are physically unable to etc.

I would also argue that this ruling sets a dangerous precedent. It provides an opportunity for other rapists to try and use the same defence. Simply claiming that the suspect thought the victim ‘liked rough sex’, despite her making clear she did not is now, apparently, deemed an adequate defence.

If we are to believe that he confused her objection to the sex acts as enjoying rough sex and therefore didn’t know he was raping her; is that defence enough? If someone is stating they do not want sex, is that not enough to suggest that no one can reasonably believe consent was given (as is required in UK law, at least)? Is ignorance of the crime enough to let someone off? Do adults who find out the person they had sex with is underage escape conviction because they were ignorant of this fact?

Then we go back to ‘responsibility’. Where is the call for the responsibility of men to check for consent or stop if they are in any doubt? The suspect claims he received ‘very clear signals’ that she was enjoying what he was doing. Why was he relying on ‘signals’ rather than explicit consent? Why is saying ‘no’ apparently not adequate evidence of denying consent but ‘signals’ are adequate evidence of giving consent?

If we are going to move on and stop victim blaming we need to concentrate on consent and male responsibilities there in. There have been some recent examples of campaigns targeted and men too and it’s a welcome change. I would welcome more conversations in school about enthusiastic consent.

4 thoughts on “Should no mean no?”

In what became known as the ‘Morgan case’ a group of men claimed the woman they raped had supposedly ‘consented’ to being group raped by these men. The male rapists’ defence was that ‘they honestly believed she had consented despite her vigorous resistance.’ Furthermore these men claimed the woman’s husband had told them ‘my wife likes “rough sex” and the more she resists this proves the more she likes it!’ So a husband apparently had the right to decide if and when other males could subject his wife to rape because the husband believes the wife’s body and sexuality are his property and can be ‘offered to other men as and when he chooses.’

However, in 2002 the Sexual Offences Act was changed so that no longer could male rapists/male sexual predators claim ‘but guv I honestly believed she wanted it because I know what women want and it is always what I want!’

Swedish Judge adheres to belief that whatever a male sexual predator claims it is the definitive truth rather than the male rapist’s perspective/claims. This neatly erases the autonomy and rights of all Swedish women and girls because men living in Sweden will, if charged with rape, be able to claim ‘but guv she wanted it and despite her protestations I know exactly what she wants because it is what I want!’

Odd is not that I cannot make a similar claim if were to be charged with robbing a male of his wallet because even if claimed ‘but guv I know this male wanted to give me his wallet despite his protestations because I honestly believed he wanted to give me his wallet.’ I would rightly be charged with theft but male pseudo sex right to women and girls continues to be widely viewed by males as a male (pseudo) sex right to females any time anywhere.

Please see comment addressed to Dan above – comparing acquisitive crime to rape is particularly unhelpful regardless of the circumstances; the reality is that rape and theft are regularly and inappropriate compared, and we want to ensure that our ethical stance with regard to this isn’t compromised.

It doesn’t say that “a husband apparently had the right to decide if and when other males could subject his wife to rape because the husband believes the wife’s body and sexuality are his property and can be ‘offered to other men as and when he chooses” but says that a person cannot be guilty of an offence if they don’t know that they are doing something wrong.

As you say, the change of law in 2004 (http://www.legislation.gov.uk/ukpga/2003/42/section/1)changed that position for sexual offences. But not for robbery or most other offences so if you took someone’s wallet because “but guv I know this male wanted to give me his wallet despite his protestations because I honestly believed he wanted to give me his wallet” then you would still be not guilty of theft or robbery.

I think the problem with the Swedish ruling is the law itself rather than the Judge, as it seems that he followed the law as it was in Sweden. It’s generally a bad idea when Judges go round changing the law because they don’t like it.

Thanks for your comment and the legal perspective. We agree that the reality of sexual offences law in Sweden does not match up with the media impression of it being a ‘feminist utopia’.

One additional thing – rape is not an acquisitive crime, and so comparing to theft or robbery is disingenous, at best. Our vaginas cannot be locked up, kept in a safe, nor disguised. The assumption is that if you are read as a woman, you are at massively increased risk of rape just by the very nature of ‘being woman’. Our vaginas are not a possession, to be stolen as a wallet is in the case of theft or robbery.

As a side note, many of the women who have shared their experiences on this site explain that the men who raped them claimed not to know that they were doing wrong. We know from research that rape is a planned activity – it is very rare for a rape to take place spontaneously, without the rapist having, at the very least, a feeling that he is entitled to sex, if not a formalised plan to rape a woman in his company.

We know that often, when men say they do not believe they are doing anything wrong, they are lying. They know exactly what they are doing, but their entitlement and their needs come first and so they make their choices that feed the entitlement and meet the need, without consideration for the woman involved.